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WARREN W. CLARK v. WORKMEN'S COMPENSATION APPEAL BOARD (LUBRI KUP COMPANY AND PMA INSURANCE COMPANY) (11/08/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 8, 1984.

WARREN W. CLARK, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LUBRI KUP COMPANY AND PMA INSURANCE COMPANY), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Warren Clark v. Lubri Kup Company, No. A-85370.

COUNSEL

John P. Pietrovito, Candor, Youngman, Gibson & Gault, for petitioner.

Robert A. Seiferth, Liebert, Short, Fitzpatrick & Lavin, for respondents.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 86 Pa. Commw. Page 59]

Warren W. Clark, Claimant, appeals here the action of the Workmen's Compensation Appeal Board (Board) in affirming a referee's dismissal of Claimant's Petition to Set Aside Final Receipt.

The sole issue presented by Claimant, unique and certainly of first instance, is whether or not it was an abuse of discretion by the referee to refuse Claimant's request for the appointment of an impartial

[ 86 Pa. Commw. Page 60]

    physician under Section 420 of the Pennsylvania Workmen's Compensation Act (Act),*fn1 where Claimant's indigency made it impossible for him to procure the services of his own medical witness, in that the failure to honor Claimant's request for appointment of an impartial physician "deprived him of the right to a fair hearing."*fn2 Claimant concedes, of course, that he has not met his burden to prove that his disability attributable to the original injury on November 1, 1978 had not in fact terminated when he executed the final receipt on March 21, 1979. He concedes, also, as has long been settled by law, Workmen's Compensation Appeal Board v. Delgado, 22 Pa. Commonwealth Ct. 138, 348 A.2d 447 (1975), that the referee's statutory authority to appoint an impartial physician is entirely discretionary and that the failure to exercise that discretion does not constitute reversible error; but he argues, nevertheless, that there is a special responsibility imposed upon the referee by the terms of Section 420 to provide aid, including expert witness testimony, when needed by an indigent claimant.*fn3 He presents no authority in support of this contention, relying solely upon the terms of Section 420, the relevant portions of which read:

The Board, the department or referee, if it or he deem it necessary, may, of its or his own motion, either before, during, or after any hearing, . . . appoint one or more impartial physicians or surgeons to examine the injuries of the plaintiff and report thereon, . . . [and] . . . [t]he Board or referee, as the case may be, shall fix

[ 86 Pa. Commw. Page 61]

    the compensation of such physicians, surgeons, and experts, which, when so fixed, shall be paid out of the sum appropriated to the Department of Labor and Industry for such purpose.*fn4

In our extensive consideration of Section 420 in the past, it has been made clear that while either party has a right to demand the appointment of an impartial physician, such appointments are solely within the discretion of the referee, Lamanna v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 535, 437 A.2d 465 (1981); Costanzo v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 249, 410 A.2d 967 (1980); Imperial Food Products v. Tomarelli, 28 Pa. Commonwealth Ct. 150, 367 A.2d 732 (1977).

In Tomarelli we stated:

Consequently, the failure to exercise that discretion does not constitute reversible error where, as here, the referee chose to base his decision on the testimony of one of the medical witnesses.

It is our conclusion, therefore, that the refusal of the referee to appoint an impartial physician in the absence of medical testimony on Claimant's behalf by reason of Claimant's indigency, was within the referee's discretion and not an abuse thereof.*fn5 Accordingly, we will affirm.

[ 86 Pa. Commw. Page 62]

Order

Now, November 8, 1984, the order of the Workmen's Compensation Appeal Board at No. A-85370, dated September 8, 1983, dismissing Claimant's Petition to Set Aside Final Receipt, is affirmed.

Disposition

Dismissal affirmed.


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